GANGARAM Vs. HETRAM

JUDGEMENT

(1.) AGAINST the judgment and decree of the District Judge, Ganganagar, dated the 22nd August, 1958, who had affirmed the judgment and decree of the Civil Judge, Ganganagar, dismissing the suit for recovery of Rs. 4,300/-, a second appeal by the plaintiff was preferred to this Court and it came for hearing before Bhargava J., in whose opinion the appeal involved certain questions of law on which there is a divergence of judicial opinion and therefore the same has been referred to this Division Bench for decision.

(2.) THE facts relevant for the decision of this second appeal may be briefly recalled. On 17th February, 1950, the plaintiff alleges, Ganpat, the father of the respondents, before us, borrowed a sum of Rs. 2,600/- and executed a 'Khata' in the plaintiff's book of account bearing interest at the rate of Rs. 1 /9/- per cent per month. Ganpat again borrowed a sum of Rs. 100/- on 10th April, 1951. THE plaintiff admits that certain payments were made toward the cash transactions and on 12th September, 1951, Ganpat after going through the accounts acknowledged his liability in the sum of Rs. 3,360/r, and in token thereof affixed his thumb mark in the plaintiff's book of account. After the death of Ganpat, it is alleged in the plaint para four that Hetram respondent paid a sum of Rs. 300/-. THE document (Ex. 2.) however, says that the payment was made by Ganpat himself and this appears to be the correct position. Later on 18th July, 1952, Hetiam as 'Karta' of his joint Hindu family, after examining the previous accounts, acknowledged his liability in the sum of Rs. 2,749/- and executed a Khata' in favour of the plaintiff, and further agreed to pay interest at the rate of Rs. 1/9/- per cent per month. THE defendants paid nothing thereafter and the plaintiff was compelled to institute a suit on 14th July, 1955, for the recovery of the sum of Rs. 4,300/- including principal and interest. THE suit was resisted by the defendants. It was denied that Ganpat borrowed any money from the plaintiff. Hetram further averred that he had merely put his thumb mark on the 'Khata' contained in the plaintiff's book of account as a result of undue influence of the plaintiff and that too during his minority. He repudiated any stipulation with regard to the rate of interest and also raised the plea of limitation. THE defendants objected to the admissibility of the three 'Khatas' on the ground that they were not stamped in accordance with law.

(3.) WE have given our anxious consideration to the arguments advanced before us and the authorities relied upon, and we are of opinion that the view taken by our Court in Champalal's case(7) and Moolchand's case(8) is the view with which we are in respectful agreement. WE find ourselves unable to agree to the interpreta-tion the learned Judges of the Rangoon High Court placed on the pronouncement of the Privy Council in the Rajah of Bobbili's case(21) that their lordships said more than they really meant. Let us examine the provisions of the Stamp Act to gather the true intent of the legislature. Chapter IV of the Indian Stamp Act of 1899 deal with instruments not duly stamped. Sec. 33 imposes a duty on every person by lav or consent of parties authorised to receive evidence, and every person in charge of; public office, except an officer of police, before whom any instrument, chargeable, in his opinion with duty, is produced or comes in the performance of his functions shall, if it appears to him that such instrument is not duly stamped, to impound the same. The obvious object of this provision is to safeguard public revenues emana ting from the provisions of the Indian Stamp Act. Sec. 34 makes special provision with regard to unstamped receipts and sec. 35 imposes a prohibition on admitting the documents which were not duly stamped and further provides a levy of penalty in the cases specified in that section. Sec. 36, as already indicated, is an exception engrafted on sec. 35 that once an instrument has been admitted into evidence the question regarding its being adequately stamped or not will not further be left controversy. Sec. 37 relates to the case of stamps of improper description and sec. 3 provides that when the person impounds an instrument under secs. 33, 35, and 3/ "he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he ma appoint in this behalf." The first practical difficulty in permitting the copy of lost instrument to be admitted in evidence is that copy of the copy could not be sent as required by sec. 38.